Abuse of process
Because private interests are, to some degree, almost invariably inherent in the bringing and conduct of private prosecutions, there is more scope for scrutiny of private prosecutors than public prosecutors. Private prosecutors should be made aware that, realistically, there will likely be more room for questioning the initiation and conduct of a private prosecution than a public prosecution10.
However, the legal principles relating to the abuse of process jurisdiction apply in the same way to private prosecutions as they do to public prosecutions.11 This chapter therefore does no more than identify some areas which those acting on behalf of a private prosecutor should consider.
Many private prosecutions will be brought with mixed motives, most obviously where the prosecutor claims to be the direct victim of the alleged misconduct. Mixed motives may result in heightened scrutiny of the process, to ensure that the case is conducted fairly.
Where the primary motive for the prosecution is unrelated to the proceedings, it is likely to render the prosecution a misuse or an abuse of the Court’s process. A useful touchstone for consideration of the issue may be to ask whether the criminal legal process is being used against another primarily to accomplish a purpose for which it is not designed.
Detailed consideration of the abuse jurisdiction is outside the scope of this Code. Some of the key factors to consider at the outset may be:
- When did the prospective private prosecutor first (i) become aware of the facts or issues which give rise to the prosecution and (ii) realise that a criminal offence may have been committed?
- What, if any steps has the prospective private prosecutor taken to deal with the matters giving rise to the prosecution before applying for a summons?
- Is there a reasonable explanation for any delay?
- Is there any evidence which no longer exists?
Legal advisers should warn private prosecutors for whom they act that adverse and/or excessive media publicity can cause the fairness of the ensuing trial to be called into question and can potentially become the subject of legal argument.
This warning may be particularly important in cases that are crowdfunded and which therefore rely on publicity for their very existence. Given the detrimental effect that adverse publicity can have on a prosecution, crowdfunding must be approached and handled with caution.
Private prosecutors should consider identifying an appropriate media spokesperson, particularly where proceedings are likely to generate significant public or media interest.
The private prosecutor should be aware/advised by his or her legal representative that a failure by the prosecution to comply with its duties of disclosure may lead to the proceedings being stayed as an abuse of process.
Concurrent civil proceedings
Parallel criminal and civil proceedings may be pursued so long as to do so is fair, proportionate and properly motivated. It would not be appropriate to launch criminal proceedings purely to influence extant or prospective civil proceedings.12
Where the private prosecutor is the client of a law firm, they may be entitled to receive their solicitor’s file.13 Where the private prosecutor is also a witness in the case, a request of this nature may leave the prosecution open to criticism. The private prosecutor must be advised that there are circumstances in which information/material will not be shared with them and where disclosure and decisions about the case will be made without reference to them.
7.2 If any witness familiarisation process is undertaken it should be regulated in accordance with the guidance of the Court of Appeal in Momodou (Practice Note)  2 All ER 571 and disclosed to the defence. The CPS also provides guidance on witness familiarisation.
So far as possible, a prosecutor should establish the factual background of any previous disposal before initiating proceedings. If a potential defendant has been told that an out of court disposal would act as a bar to further proceedings, a prosecution may be an abuse.
A successful abuse of process application may result in a defendant receiving an award of costs payable by the private prosecutor. Private prosecutors should be advised of this risk prior to the commencement of the case.
10 David Haigh v City of Westminster Magistrates’ Court  EWHC 232 (Admin).
11 D Ltd v A  EWCA Crim 1172
12 (G) v S and S  EWCA Crim 2119.
13 Subject to certain exemptions – see the Law Society practice note, Who Owns the File?